Court Takes Away Some of the Public Domain 431
An anonymous reader writes "In yet another bad ruling concerning copyright, a federal appeals court has overturned a lower court ruling, and said that it's okay for Congress retroactively to remove works from the public domain, even if publishers are already making use of those public-domain works. The lower court had said this was a First Amendment violation, but the appeals court said that if Congress felt taking away from the public domain was in its best interests, then there was no First Amendment violation at all. The ruling effectively says that Congress can violate the First Amendment, so long as it feels it has heard from enough people (in this case, RIAA and MPAA execs) to convince it that it needs to do what it has done." TechDirt notes that the case will almost certainly be appealed.
The RIAA are not people (Score:5, Insightful)
ALL copyright is a restriction on free speech. (Score:5, Insightful)
Copyright is, at it's core, the government-enforced ability for a private entity to say "you're not allowed to say that, because I said it first". This is by definition an impingement on free speech.
Free speech != original speech.
Rights don't exist (Score:1, Insightful)
When government "reserves the right" to oppress your rights, then by common sense, your rights never existed in the first place.
Public Domain erosion (Score:5, Insightful)
Re:ALL copyright is a restriction on free speech. (Score:5, Insightful)
Copyright applies to a great deal more than speech.
But yes, that ruling stinks. It basically says someone with lobbying dollars can buy exceptions to the first amendment. And at the same time it reinforces the eagerness of the courts (federal in this case) to sell out to big business/groups whom they are trying to fool us into believing are somehow representing "the people". If you want to be making that sort of comparison, "big business" is pretty much the polar opposite of "the people".
Heh (Score:2, Insightful)
Re:ALL copyright is a restriction on free speech. (Score:5, Insightful)
Copyright was in the original constitution, free speech was not:
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
However, unlike what this ruling seems to say, the Constitution gives congress no authority to reassign ownership of works and I'm pretty sure "limited time" is now is nowhere near what the founders had in mind.
As far as I'm concerned, what should be focused on here is the ban on passing Ex Post Facto laws in the Constitition:
http://en.wikipedia.org/wiki/Ex_post_facto_law#United_States [wikipedia.org]
This seems like such a breach.
There's a reason to have an ever expanding public (Score:4, Insightful)
For anyone here who promotes the expansion of copyright law I ask a question:
What if Shakespeare was still in copyright? Or Beethoven, or Bach or Chaucer or Gilbert and Sullivan.
Would society be better if such intellectual legacies were allowed? Without a constant updated public domain isn't society suffering?
I don't like it, but it's probably correct (Score:5, Insightful)
I don't like the ruling, but it's probably correct. Congress has the Constitutional authority to institute copyright laws and there is no particular legal reason to presume that once something is in the public domain, it can never be returned to being copyrighted. Not liking it is not a legal reason.
However, after skimming over the decision I see no mention of the issue of this being an ex post facto law w.r.t. using things that were in the public domain, but suddenly weren't. I believe that under a reasonable interpretation of that clause you can not touch those people, and it is not Constitutional to ask them to pony up any money, "reasonable" amounts or otherwise. Liabilities should only be incurred based on the copyrighted status of the used works at the time of use, not at the whim of any future Congressional acts. Unlike "not liking retroactive extension", this point is actually a Constitution-based argument.
Re:ALL copyright is a restriction on free speech. (Score:5, Insightful)
Wrong because "free" speech has nothing to do with copyright or vice versa.
Free speech means you can say unpopular things, things that disagree with the "establishment", things that are inflammatory, things that are downright disgusting (in some segment of the populations opinion)..
Free speech does not mean you can copy things either privately or for profit.. it never has and it never will. Fair Use/Copyright/Public Domain are all interrelated with only each other.
There are times when Free speech and Copyright may cross paths.. (such as I dunno.. someone putting out a scathing unauthorized biography of a political figure.. and selling that book/movie.. and then suing someone else for trying to copy his or her work and sell it)
I really wish that people who are so into constitutional/bill of rights issues would at least do the rest of the world a favor and get a passing knowledge of the subject first.
This misunderstanding of Free Speech comes up nearly as often as the complete and utter confusion over "the right to keep and bear arms" clause.. not to mention the strict constitutional interpretations that conveniently (much like religious zealots) ignore the parts that they do not like or agree with.
Re:This is stupid (Score:5, Insightful)
Idiot bloody lawyers (Score:5, Insightful)
They all want to argue the First Amendment, like it's some Holy Scripture and they get bonus karma for it in a future life.
Taking things out of the public domain that were already there is the opposite of progressing Science and (the) useful Arts. That's the pertinent Constitutional issue, not some bullshit Amendment-of-last-resort argument.
Re:ALL copyright is a restriction on free speech. (Score:5, Insightful)
The fugitive slave laws are a system to ensure that those who have spent good money buying and training Africans don't get screwed just cause some abolitionist runs an underground railroad and could, hypothetically, free as many slaves as possible.
Re:Public Domain erosion (Score:1, Insightful)
Removing PD entirely would be great. Force the RIAA and MPAA to now give royalties to foundations of works they've been leeching off of for decades.
Oh, and let's make it retroactive.
Shakespeare and Mozart are gonna be richer than Carlos Slim...
Re:ALL copyright is a restriction on free speech. (Score:1, Insightful)
Are you saying that writing a book is like keeping people as slaves?
Wow (Score:5, Insightful)
Why bother following any laws anymore? So many unjust laws on the books it almost undermines the validity of any sane laws that are left.
Re:I don't like it, but it's probably correct (Score:5, Insightful)
I think you nailed it.
People claim this is a First Amendment issue, but I can't see how. Free Speech isn't about publishing other people's works; it's about protecting people's right to disagree with the government.
More to the point, though: Copyright law is not part of the Constitution, so Congress has every right to change it as they see fit.
I don't like it. I don't like how Copyright has become a way to protect big companies at the expense of the little guy. But I can't see any way to interpret the First Amendment so that it conflicts with Copyright and Congress's right to extend it.
Re:ALL copyright is a restriction on free speech. (Score:2, Insightful)
Did you just honestly compare the ownership of a person to the ownership of a work that conceivably took weeks, months or years to complete that resulted from the work of an individual, or a group of individuals? That is such a ridiculous, absurd comparison that I don't even know where to begin.
When people compare things like this to slavery and Nazism, they either look like idiots, or if taken seriously degrade what happened during those events.
I am unaware of any books that were offered up by their fellow books as a slave, transported to another country, and forced to perform menial services against their will.
Are there issues with copyright laws that need fixing? Absolutely. Do the things that are wrong with copyright law rise to the level of enslaving a race of people?
Re:ALL copyright is a restriction on free speech. (Score:4, Insightful)
I guess he means "not allowing people to read/share/copy a book is like keeping people as slaves".
This sounds like "the content wants to be free".
After all, it makes sense to have some ability to control our own work. The problem is that instead of just assuring people don't get robbed, the congress usually gives *AA sort of a license to kill.
Re:The RIAA are not people (Score:3, Insightful)
Some are out for an ideal the others for profit. Changing laws to increase someone's profits is nuts.
Re:Why not? (Score:4, Insightful)
Having a monopoly on publications of Shakespeare's works would probably affect the supply.
Re:ALL copyright is a restriction on free speech. (Score:3, Insightful)
What about the 4th?
A ruling like this is basically taking the work of some author "that spend months of labor" writing something and gives it to someone else.
All of the shills shedding crocodile tears really should be harping on this point more.
Re:The RIAA are not people (Score:3, Insightful)
Re:ALL copyright is a restriction on free speech. (Score:1, Insightful)
Whoosh!!!
The focus here is on the rich and well-connected getting their way -- how in a democracy (where we the people are to have ultimate authority) are disenfranchised by the wealthy elite; how the courts, congress, and the presidency continually change the law to suit the interests of the wealthy rather than the interests of the majority. There are exceptions. Emancipation of slaves is one such exception. The wealthy had it wrong then with regard to slavery, and they have it wrong now with regard to copyright. It is the same thing. These fucking bastards think that they should own EVERYTHING for ALL TIME --- books, music, land ... and people. They use the same language to justify it every time. The GP is spot on.
Re:Finally the right call (Score:5, Insightful)
First, our treaty obligations do not override the limits on the federal government imposed by the Constitution, either as a matter of law, or, frankly, proper policy. If the political branches enter into a treaty that requires the US to act unconstitutionally, then we will unavoidably have to violate the treaty until we can fix it, or get out of it. If TRIPS requires this, then we cannot comply with TRIPS.
Second, you're assuming that we need to even participate in TRIPS; we don't. The US has a strong enough position that we don't need to enter into any copyright treaties, quite frankly. Our relevant industries are quite capable of dealing with that, just as they dealt with the US not being in Berne until 1989. Our copyright law has become bad enough due to domestic actors, but the 'back door' created by treaty obligations is completely abysmal. It helps to get laws pushed through Congress without debate or the opportunity to amend them, lest we be in violation of yet another foolish treaty.
The US should immediately withdraw from all copyright treaties, amend its copyright law to best serve the domestic interests of all Americans (not merely creators and publishers), should unilaterally offer national treatment to foreign authors, provided their works are published in the US and otherwise comply with the formalities we need to re-establish and strengthen, and should limit its international involvement in copyright matters to informal cooperation with other states to ensure that their copyright laws do not in some way become mutually incompatible with ours (typically due to formalities). In this way, we would not only improve things for ourselves, while not materially harming our own copyright-related industries, but we would be reigning things in, and once again provide guidance to the rest of the world as to how copyright laws can work sensibly. That's something we haven't done a good job of in the 20th and 21st centuries, particularly since we enacted the disasterous 1976 Act.
Re:RIAAland? (Score:4, Insightful)
That's what ACTA is for.
See, a bunch of multi-nationals have lobbied the US to do something under the guise of helping US interests. Then they lobbied them to force everyone else to get on board with the same laws so their stuff could be protected internationally. After that, they own everything everywhere.
Who needs a new country when you can slowly bring about an oligarchy in all of them and then call the shots?
Re:I don't like it, but it's probably correct (Score:5, Insightful)
People claim this is a First Amendment issue, but I can't see how. Free Speech isn't about publishing other people's works; it's about protecting people's right to disagree with the government.
Well that's just completely wrong. You are saying, for example, that if I wanted to stage a performance of Romeo and Juliet, which was wholly apolitical, the government could arbitrarily choose to shut me down, because I am not Shakespeare, and I am not criticizing them? That's absurd.
The First Amendment protects speech, period. Political speech is of particular concern, but it protects artistic speech, commercial speech, etc. just as well. It also protects people when they repeat the speech of someone else, rather than create their own. We temporarily limit that last part with copyright, but the underlying right doesn't discriminate. That's why when copyright expires on a work, there is no affirmative grant to the public to use that work; instead the restriction is lifted, and the previously-dormant free speech right can finally be exercised.
Copyright law is not part of the Constitution, so Congress has every right to change it as they see fit.
Only within Constitutional bounds. And the Constitution does set some limits and requirements on what Congress may do.
Re:ALL copyright is a restriction on free speech. (Score:3, Insightful)
Absurd. At no point did his comparison imply that problems with copyright are as significant as the problem of slavery.
What is the problem with comparing things with other things of a much greater magnitude? When people compare electrons to planets, do you object because planets are obviously much, much larger and clearly must have nothing at all in common with something with such a far removed size?
His sentence was clearly saying that not screwing specific people over is not always the most important thing. This holds true for big issues like slavery, and for small issues like copyright. It's a valid comparison. What's so wrong with that?
Re:The RIAA are not people (Score:5, Insightful)
really? would you?
Public domain is different from not yet existent (Score:2, Insightful)
The act of taking something out of the public domain is an expropriation of public property with the intent to give it to one person. This is different from granting property rights to authors of new works.
Re:ALL copyright is a restriction on free speech. (Score:3, Insightful)
> I guess he means "not allowing people to read/share/copy a book is like keeping people as slaves".
> This sounds like "the content wants to be free".
Or simply people want to be free. Not in a physical sense as the classical concept of slavery implies, but a mental one. Exposure to new ideas expands one's ability to think and understand - to draw meaning from events. A public deprived of these expanded abilities is easier to control and oppress. This is why maximizing the number of works freely available to the public is important in maintaining the freedom of The People as a whole.
In this light, "not allowing people to read/share/copy a book is like keeping people as slaves", yes.
Re:ALL copyright is a restriction on free speech. (Score:3, Insightful)
After all, it makes sense to have some ability to control our own work.
But that's not what the constitutionsl basis of copyright in the US is. Constitutionally you're supposed to have a limited time monopoly on publication, nothing more, and when the time is up anybody can do anything with it they damned well please, and you have no control whatever.
The intellectual property belongs to we, the people, not we, the creators. I no more own the works I create than I own the house I rent; in both cases I have a limited time monopoly on the property, but it isn't MY property. My house belongs to my landlord and my IP belongs to humanity.
Re:ALL copyright is a restriction on free speech. (Score:2, Insightful)
Theft (Score:5, Insightful)
This is nothing less than theft. Once in the public domain, I own it. You own it, we all own it. It's literally stealing from everyone and giving to few.
Re:Finally the right call (Score:3, Insightful)
Except, you forget that it's US politicians cramming these copyright laws down the rest of the world's collective throat, under the guise of protecting US interests. Heck, the *AA's help their equivalent group in various countries lobby the government to get your DMCA passed. So much so, that, they'll just re-use the document [michaelgeist.ca] in another country.
TFA points out that Congress is acting under the belief that they are protecting US interests since more US property was being copied in foreign countries than the reverse. At least, according to data provided to them by the people who wanted the law.
Trust me, other countries aren't saying "oooh, we need a law like that". The US is saying in lightly veiled threats that if the other countries don't adopt the law, there might be some consequences [arstechnica.com]. Sadly, the lobbying groups in the US are pushing very hard to use faulty 'reports' to get certain things deemed 'true' in the US, and then pushing the same crappy data abroad. Data they made up via arms length think-tanks which are basically paid shills to write position papers they need.
As long as your politicians give such weight to the testimony of the RIAA/MPAA, we're all getting shafted. But don't think for a minute that it's the rest of the world imposing these treaties and laws on the US. That's why the appeal court basically said that Congress could do this ... because they claim to be protecting US interests.
Re:ALL copyright is a restriction on free speech. (Score:3, Insightful)
Are you saying that writing a book is like keeping people as slaves?
Actually, I'd say the monopoly on the words is very much analogous to keeping people as slaves.
Our goals as a society for the two couldn't be any more different, and that's kind of the point. Our goal with copyright is to promote the expansion of culture for our society as a whole to benefit from. To accomplish this we allow the authors to take captive their words, and be assured that they, and they alone have the right to sell them for a limited time.
Conversely, as a society we have deemed slavery an unnatural and unjust state of human existence, and as such we outlawed it (though it was very rough going).
The business case for reducing the rights of African slaves to live freely and reducing the rights of the public to copy, however, are identical. It's only our goals as a society that influence how we respond to either.
Re:The RIAA are not people (Score:5, Insightful)
There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary to public interest. This strange doctrine is not supported by statute or common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped, or turned back.
Re:ALL copyright is a restriction on free speech. (Score:5, Insightful)
After all, it makes sense to have some ability to control our own work.
One you publish it, it's not "yours"; you don't own it. The phrase "control our own work" loses all meaning when applied to published content. If you don't understand this, you don't understand the Constitution, since it's the fundamental principle behind copyright law.
Congress shall have the power:
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
The two most important points here:
1) The purpose of copyright is not to enrich authors and inventors. It exists to provide incentive to authors and inventors to publish their works for the benefit of society.
2) Congress can limit the duration a copyright and can do so without due process. Congress can't expire your rights to things you actually own, like the shirt on your back.
If you have an unpublished manuscript, you own that. Destroy it, toss it in a fire, do whatever you like with it; it's yours. The moment you publish, you give up your ownership. You have no rights to recall, revoke, or destroy the copy of your published manuscript that is in my head. That's mine, not yours.
However, we like manuscripts, and we want you to write them. In exchange, we offer you a time-limited exclusive control over certain rights of ownership. We will never give back ownership (we can't), but we will give you back a taste of what you had before you published. This is your payment for publishing the manuscript and giving up ownership. We wish you the best in exploiting those rights as you see fit.
Just don't make the mistake of thinking you still own your published material or that you even should own it. The rights a person has over their own thoughts in their own head supercede any and all property rights.
"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it." --Thomas Jefferson